Stephen G. Ross

The appellant, Seargeant Picard Incorporated (SPI), appealed a "boomerang" summary judgment order that found the respondents' (Saxbergs') action for breach of a construction contract was not statute-barred.

SPI argued the motion judge erred in the discoverability analysis and in granting the boomerang order.

The Court of Appeal dismissed the appeal, finding no reversible error in the discoverability analysis, particularly regarding the application of the "appropriate means" test under the Limitations Act, 2002, and upheld the boomerang order given the parties' agreement and the thoroughness of the motion judge's review.

The Court of Appeal for Ontario dismissed an appeal by defendants seeking to hold litigation lenders liable for costs incurred by a class member (Mr. Zuber) who pursued an exaggerated damages claim and incurred substantial debt from litigation loans.

The trial judge had refused to order the lenders to pay costs, finding they did not instigate or control the litigation in a manner amounting to an abuse of process, despite the onerous interest rates and the loans impeding settlement.

The Court of Appeal affirmed this decision, reiterating that non-party costs are limited to "person of straw" or abuse of process scenarios, neither of which applied to the lenders' conduct.

The court also refused leave to cross-appeal the trial judge's decision not to award costs of the motion to the lenders, finding no error in principle.

The Court of Appeal for Ontario issued supplementary reasons to its earlier judgment in Nemchin v. Green, 2021 ONCA 238, which had allowed the appellant's appeal regarding the "top-up" of long-term disability benefits assigned to the respondent's insurer, Aviva.

This addendum addresses the treatment of potential tax refunds from Sun Life's remittances and the allocation of expenses related to pursuing such refunds.

The court clarified that while Aviva is not compelled to seek tax refunds or cease tax deductions, if Aviva chooses not to pursue a tax refund, it must reimburse the appellant's reasonable expenses for bringing such an application, as Aviva would ultimately receive the benefit of any tax refunds.

This is a costs endorsement following an appeal where the Court of Appeal allowed the appellant's appeal, setting aside a trial judge's order requiring the appellant to "top up" assigned benefits due to tax deductions.

The appellant was awarded partial indemnity costs for the appeal.

This endorsement specifically addresses the costs of a prior motion before the trial judge (the "top up motion"), for which the trial judge had made no costs order.

The Court of Appeal found the appellant entitled to costs for this motion, ordering the respondent to pay $10,000, reasoning that the unanticipated nature of the trial judge's order and the parties' failure to seek an advance tax ruling contributed to the litigation.

The appellant appealed a trial judge's order requiring her to "top up" assigned long-term disability benefits to account for income tax deductions, arguing procedural unfairness and misinterpretation of s. 267.8 of the Insurance Act.

The Court of Appeal found the "top up" order procedurally unfair as it was not requested by parties and misinterpreted the statutory trust and assignment provisions.

The court held that the assignment applies to net after-tax payments, and the respondent's insurer, as assignee, must bear the burden of addressing tax implications with the insurer and CRA.

The appeal was allowed, and the "top up" order was set aside.

The appellant appealed a jury verdict awarding the respondent approximately $700,000 in damages for personal injuries arising from a motor vehicle accident.

The main issue at trial was whether the respondent's post-traumatic stress disorder was caused by the collision or by an earlier sexual assault.

The trial judge excluded surveillance video evidence and Facebook posts that the defence sought to introduce as substantive evidence of the respondent's functionality.

The Court of Appeal found that the trial judge erred in excluding the surveillance evidence by dealing with it as a whole rather than taking a discrete approach to each video excerpt, and by concluding that the evidence could only be admissible if it directly contradicted the respondent's testimony.

However, the Court found that even if the surveillance evidence were admissible, it was not so significant that it would have affected the jury's verdict on damages.

The appeal was dismissed.

The appellants appealed a jury verdict in a personal injury action arising from a motor vehicle accident.

The respondent plaintiff claimed chronic pain, anxiety, and depression resulting from a relatively minor collision.

The appellants raised two grounds of appeal: (1) the trial judge erred in refusing to grant a mistrial based on alleged prejudicial evidence regarding the respondent's complaints about defence counsel's conduct, and (2) the trial judge erred in allowing an amendment to the statement of claim following the jury's verdict to reflect the full damages awarded.

The Court of Appeal dismissed both grounds of appeal and upheld the trial judge's discretionary decisions.

The Minister of Finance reassessed BFL Canada Risk and Insurance Services Inc. for a late retail sales tax return, imposing an administrative penalty.

BFL sought an extension and penalty waiver based on extenuating circumstances, which the Minister rejected.

BFL appealed to the Superior Court of Justice, challenging the Minister's refusal to apply its Extenuating Circumstances Policy.

The Minister argued the Superior Court lacked jurisdiction, asserting the matter should proceed by judicial review in Divisional Court.

The motion addressed the question of law regarding the Superior Court's jurisdiction under s. 25(1) of the Retail Sales Tax Act to vacate or vary a tax assessment based on the Minister's discretionary decisions.

The court found that the Superior Court has jurisdiction, as the RSTA's appeal mechanism is broad and not limited to the validity and correctness of an assessment, nor does it immunize discretionary decisions.

The plaintiff was catastrophically injured in a motor vehicle accident and sued the defendants for damages.

The jury found the defendants 62% liable and awarded damages of approximately $2.6 million, including $2.2 million for future care costs.

The trial judge made a conditional assignment order of the plaintiff's future statutory accident benefits (SABs) to the defendants' insurers under section 267.8(12)(a)(ii) of the Insurance Act.

The plaintiff appealed, arguing that the assignment violated strict matching principles and was premature.

The Court of Appeal dismissed the appeal, affirming the conditional assignment order and rejecting the strict matching approach in favour of a "silo" approach.

The court also denied leave to appeal the trial judge's substantial reduction of the plaintiff's costs award, which was reduced from $795,616.09 to $375,000 due to the plaintiff's counsel's conduct regarding a settlement offer, the lack of material benefit in proceeding to trial, and conduct that unnecessarily extended the trial.

This appeal concerns the admissibility of participant expert evidence in a civil jury trial involving allegations of sexual assault.

The respondent sued for damages for sexual assaults allegedly committed in the mid-1990s.

A mental health clinician who treated the respondent in prison was permitted to give evidence as a participant expert.

The trial judge admitted the clinician's unredacted reports and allowed him to testify about their contents.

The Court of Appeal found that the clinician exceeded the proper scope of a participant expert by providing opinions on whether the alleged sexual assaults occurred and whether the respondent suffered harm caused by such assaults.

The court held that these opinions failed to meet the threshold requirements for admissibility under the Mohan/White Burgess test and that their prejudicial effect outweighed their probative value.

A new trial was ordered.

The appellants appealed a judgment in a motor vehicle accident case where the trial judge admitted liability just before trial and the matter proceeded as a damages assessment before a jury.

The appellants contended that the trial judge failed to address transgressions by respondent's counsel, unfairly summarized evidence in jury instructions, and displayed reasonable apprehension of bias.

The Court of Appeal dismissed all grounds of appeal, finding that the trial judge's conduct was fair and balanced, that many complaints were not objected to at trial, and that the allegations of bias did not meet the high threshold required to displace the presumption of judicial impartiality.

The defendant, Walmart Canada Corp., brought a motion for leave to appeal an order by Justice Barnes that dismissed Walmart's motion for summary judgment.

Justice Barnes had found a genuine issue requiring a trial regarding the plaintiff's slip and fall claim and declined to use enhanced fact-finding powers.

The current court, presided over by Emery J., dismissed Walmart's motion for leave to appeal, finding no conflicting decisions or reason to doubt the correctness of Justice Barnes' order.

The court also determined that the issues raised did not transcend the private interests of the parties to become a matter of public importance, thus failing to meet the strict test for leave to appeal under Rule 62.02(4).

The defendant brought a motion for summary judgment to dismiss the plaintiff's slip and fall claim.

The plaintiff alleged she slipped on liquid on the floor, while the defendant argued there was no liquid and it had a reasonable system of inspection.

The court granted the defendant leave to bring the motion after the action was set down for trial.

However, the court dismissed the summary judgment motion, finding genuine issues requiring a trial regarding credibility, whether there was liquid on the floor, and whether the defendant's employees actually followed the system of inspection.

The third party moved for summary judgment to dismiss the defendants' third party claim against him.

The plaintiff was injured when he fell from a rented boom lift after instructing the third party to remove a pin from the machine.

The third party argued he was merely following the plaintiff's instructions and could not be found negligent.

The court dismissed the motion, finding that a genuine issue for trial existed regarding whether it was reasonable for the third party to follow the instructions without making inquiries or assessing the risk.

The plaintiff was injured in a motor vehicle accident and sued his insurer, Unifund, under the unidentified motorist provisions of his automobile insurance policy.

Unifund brought a summary judgment motion to dismiss the claim on the basis that the identity of the owner and driver of the offending vehicle were known.

The motion judge granted the order on the mistaken premise that all parties had consented to it.

The plaintiff subsequently brought a clarification motion seeking to estop the defendants from raising identity defences at trial.

The Court of Appeal allowed the plaintiff's appeal, finding that the summary judgment motion was made on an erroneous basis and that taking "no position" on a motion is fundamentally different from consenting to it.

The court set aside all orders and dismissed the summary judgment motion without prejudice to Unifund's right to renew it.

Following an unsuccessful motion for summary judgment by the moving defendants, the successful plaintiffs and co-defendants sought their costs.

The court awarded costs on a partial indemnity scale, finding the motion was neither frivolous nor vexatious but was exceedingly complex.

The court excluded the plaintiffs' disbursements for expert reports, determining that those reports were necessary for trial in any event and should be assessed by the trial judge.

Total costs of $16,234.68 were awarded to the plaintiffs and $8,243.83 to the co-defendants.

The defendants, Bryan Watt and Bruce E. Smith Ltd., brought a motion for summary judgment to dismiss the plaintiffs' claims and all crossclaims against them arising from a three-vehicle collision on the QEW.

The moving parties relied on expert evidence suggesting the defendant driver's reaction time was reasonable.

The plaintiffs relied on competing expert evidence suggesting the accident was avoidable.

The court dismissed the motion, finding that the conflicting factual evidence and competing expert opinions regarding perception-response time and looming required a full trial to resolve.

The defendants brought a Rule 21.01 motion seeking an order barring the plaintiff from advancing personal injury damages arising from the death of her dog, arguing that psychiatric injury to the owner was not reasonably foreseeable and was too remote in law.

The plaintiff alleged negligent dispensing of medication caused the dog’s death and resulted in severe emotional trauma, nervous shock, and economic loss.

The court held it was not plain and obvious that the damages were unrecoverable and that issues of foreseeability, duty of care, and psychiatric injury required determination on a full evidentiary record.

The motion to strike the personal injury claims was dismissed.

However, the court granted the defendants’ alternative request for further examination for discovery and related production concerning newly disclosed economic loss reports.